1. For purposes of this paper, I use the term “nonconsequentialism” to refer generally to all roughly deontological principles (neo-Kantian, contractualist, liberal, and libertarian rights theory) that regard an individual's right to be free from serious harm as supplying a Razian “exclusionary reason” that trumps an aggregative solution. It is hard to draw clear distinctions among these theories for any purpose; for my purposes, the differences among them are indeterminate or immaterial.

2. I set to the side procedural solutions, which do offer a clear alternative to substantive decision rules, consequentialist and nonconsequentialist alike. See, e.g., Richardson, Henry, The Stupidity of the Cost Benefit Standard, in Cost Benefit Analysis (Adler, Matthew & Posner, Eric eds., 2001)Google Scholar; Richardson, Henry, Beyond Good and Right: Toward a Constructive Ethical Pragmatism, 24 Phil. & Pub. Aff. 108–141 (1995)CrossRefGoogle Scholar. I also set to the side the very strong possibility that a cost/benefit calculus or any other form of consequentialism cannot be operationalized without smuggling in policy-makers’ own value judgments about what is worth optimizing.

3. Most nonconsequentialist accounts require that there be some threshold level of harm before an individual's right to be free from that harm trumps other desiderata, and the levels differ from account to account. For my purposes, those differences are immaterial. In contrast to all other nonconsequentialists, libertarians, it is frequently argued, regard harm to others as sufficient to create a prima facie case that the actor's conduct was wrongful without requiring any separate showing that the actor is “at fault” (point (2)). See, e.g., Coleman, Jules, Tort Law and Tort Theory, in Philosophy and the Law of Torts (Postema, Gerald ed., 2001), at 201Google Scholar. Libertarians often characterize their own positions in such a fashion, as in Robert Nozick's famous metaphor of a “boundary crossing.” Robert Nozick, Anarchy, State, and Utopia (1974), at 71. But in fact, libertarian arguments always depend (and must depend) on some notion of fault; the fault criterion is simply implied rather than stated.

4. This use of the word “injury” glosses over a number of disagreements in the relevant literature, including whether failure to benefit another should be treated as an injury and how to treat causes that are not necessary to produce the harm in question (because it would have been produced in any event by independent, sufficient causes). For discussion of these and related issues, see Perry, Stephen, Harm, History, and Counterfactuals, 40 San Diego L. Rev. 1283 (2006)Google Scholar; Shiffrin, Seana, Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 Legal Theory 117–148 (1999)CrossRefGoogle Scholar. For my purposes, these disagreements need not be resolved, as the problems with nonconsequentialist approaches cut across all of these more and less restrictive definitions of the relevant harm.

5. For the balance of this article, “conduct” or “act” should be understood to refer to a chosen activity undertaken with a specified level of precaution against harm to others. Thus, “driving at 50 m.p.h.” is one act; “driving at 65 m.p.h.” is a different one. When I speak of the state “prohibiting” or “permitting” an act, I therefore mean prohibiting or permitting a given activity when undertaken with the specified level of precaution.

6. Richard Craswell, discussing the same development, refers to the literature as “interpretive theories.” Craswell, Richard, In That Case, What Is the Question?, 112 Yale L.J. 918 (2003)CrossRefGoogle Scholar. Recent expositors of an immanent critique of private law include Jules Coleman, Ernest Weinrib, Dennis Patterson, Peter Benson, Stephen A. Smith, Daniel Markovits, John Goldberg, and Benjamin Zipursky.

7. Frances Kamm, Intricate Ethics (2007); John Mikhail, Elements of Moral Cognition: Rawls’ Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (2011).

8. Coleman, supra note 3, at 184.

9. As noted above, I am limiting attention here to criteria for determining whether risky conduct is permitted or prohibited and thus have little to say about the compensation question. But it is worth at least noting that the “immanent critique” of tort law has worked mischief in that area as well. Focusing on tort law in isolation from other parts of the regulatory system invites the misconception that the only available source of compensation for the injured party is the injurer. It also insulates the corrective-justice approach from obvious criticisms that arise when one considers alternative compensation schemes (e.g., private or social insurance). For a critique of the corrective-justice approach for that limited vision, see Waldron, Jeremy, Moments of Carelessness and Massive Loss, in Philosophical Foundations of Tort Law 387–408 (Owen, David G. ed., 1995)Google Scholar.

10. I pursue this and other observations about the nonlegal philosophical literature on duties not to harm others in more detail in Fried, Barbara, Can Contractualism Save Us from Aggregation?, 16 J. Ethics 1, 39–66 (2012)CrossRefGoogle Scholar; and Fried, Barbara, What Does Matter? The Case for Killing the Trolley Problem (or Letting It Die), 62 Phil. Q. 505–529 (2012)CrossRefGoogle Scholar.

11. Mark Kelman, Playing with Trolleys (unpublished manuscript) (on file with the author); B. Fried, What Does Matter?, supra note 10.

12. See B. Fried, Can Contractualism Save Us, supra note 10; B. Fried, What Does Matter?, supra note 10. I do not mean to endorse the distinction between rational and emotional responses. But I take it to be basic in some form to what is meant by rationality in Kantian morality.

13. Calabresi, Guido & Melamed, A. Douglas, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972)CrossRefGoogle Scholar.

14. For a forceful argument to this effect, see Jules Coleman, The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory (2001), at 36–38.

15. Once we focus attention on the latter function of tort law, I do think it becomes easier to explain why we might think tort law ought to cohere with the other institutions for risk regulation, at least with respect to standards of conduct. But that is not my immediate concern here.

16. Nozick's treatment of the problem in the first part of Nozick, supra note 3, is a particularly spectacular train wreck along these lines. For a more detailed analysis, see Fried, Barbara, Does Nozick Have a Theory of Property Rights?, in Cambridge Companion to Nozick's Anarchy, State, and Utopia (Bader, Ralf M. & Meadowcroft, John eds., 2011)Google Scholar.

17. Those who appear to disavow the obligation include John Goldberg, Benjamin Zipursky, Ernest Weinrib, and, until recently, Jules Coleman.

18. Some argue that harm that is certain to occur should be treated as morally equivalent to harm that has occurred, with the implication that the conduct that will produce it may be prohibited notwithstanding the absence of completed harm. See, e.g., Judith Jarvis Thomson, Imposing Risks, in Rights, Restitution, and Risk: Essays in Moral Theory (1986), at 161 (concluding that B has a right to act, for example, by breaking A's arm or locking A up, to prevent A from engaging in conduct that will infringe B's rights, but only if B “knows that A will infringe a right of B's unless B prevents A from infringing that right”) (emphasis added). But for present purposes, this is not a significant extension of the requirement of actual harm. In either case—harm certain to occur or harm that has already occurred—we are required to suspend judgment about conduct until we know for an absolute certainty that it will eventuate in harm to identified persons. It just happens that in some cases we know that ex ante.

19. See, e.g., Thomson's argument that if risky conduct is morally problematic notwithstanding the absence of completed harm, “then risk imposition does generate an independent problem for moral theory. For there is a further question which then arises, beyond the question what harms we may or may not cause in what circumstances, namely, the question what risks of what harms we may or may not impose in what circumstances.” Id. at 185.

20. See Section II.E.1 infra.

21. Rogerson, Kenneth, Rights at Risk, 1 Sw. Phil. Rev. (1984)Google Scholar.

22. See, e.g., Ernest Weinrib, The Idea of Private Law (1995), at 153; Weinrib, Ernest, The Disintegration of Duty, in Exploring Tort Law, 143–186 (Madden, M.S. ed., 2005), at 149–157Google Scholar.

23. Goldberg, John & Zipursky, Benjamin, Tort Law and Moral Luck, 92 Cornell L. Rev. 1123 (2007), at 1138Google Scholar. See also Goldberg, John & Zipursky, Benjamin, Unrealized Torts, 88 Va. L. Rev. 1625–1719 (2002)CrossRefGoogle Scholar, at 1689 (“A claim for heightened risk—even if that risk is intelligible as a harm—does not invoke the sort of harm that defendants have a duty to take care to avoid causing.”); id. at 1634 (“The duties typically recognized within the law of negligence are duties to take care not to cause ‘ultimate’ . . . harms, such as bodily harm or illness. By contrast, negligence law does not treat the ‘intermediate’ or ‘unripened’ harm of heightened risk as actionable injury.”).

24. Thomson, supra note 18, at 163.

25. See Section II.E.3 infra.

26. One finds a similarly persistent hindsight bias in the nonlegal philosophical literature on harm to others. It is attributable in part, I believe, to the same tendency to assess the permissibility of risky conduct from an ex post perspective. But there is another, more powerful factor at work in the philosophical literature: the literature focuses almost exclusively on one-off hypotheticals in which the harmful consequences of acting or not acting are deemed to be certain ex ante. The consequence of this single-minded focus on “certain” harms is to drive the problem of risk to the margins of philosophical inquiry. For further discussion of this point, See Fried, What Does Matter?, supra note 10.

27. Dobbs, Dan B., 2 Law of Remedies: Damages-Equity-Restitution (2d ed. 1993), sec. 8.10, at 535Google Scholar.

28. Goldberg and Zipursky, themselves strong defenders of the notion that an already-completed harm is essential to the very notion of tortious conduct, provide a nice counterexample: cases where defendant's negligent conduct results in a heightened risk of contracting a disease in the future. In such cases, they argue, the plaintiff should be entitled to an injunction allowing him to recoup the medical costs of monitoring the progress of the disease going forward—not as compensation for a “completed wrong” but as a prophylactic measure to avoid any wrong (tortious harm) in the first place. Goldberg & Zipursky, Unrealized Torts, supra note 23, at 1709, 1711. Their example presents one of the few instances in which ex ante prevention is a plausible remedy for a plaintiff put at risk of harm by defendant's conduct—plausible only because of the odd happenstance that there is a long lag time between when the party put at risk of injury is first identified (and hence has standing and motive to sue) and when harm to him will first materialize, if it does.

29. A deontologist might be tempted to respond that the latter case does involve completed harm—the harm of violating mandated safety standards. But that act is not a moral wrong in itself. There's nothing intrinsically immoral about driving 70 m.p.h. or putting a handrail at the height of three feet rather than two feet off the ground. Such acts are prohibited only because they are thought to create a risk of harm to others (that is to say, they are malum prohibitum rather than malum in se). That ultimate harm to others, not the violation of safety standards meant to prevent it, is the only harm we care about here.

30. Kagan, Robert, Adversarial Legalism: The American Way of Law (2001)Google Scholar. In the years 1990–2010, the costs of the U.S. tort system ranged from 1.78% to 2.24% of gross domestic product. U.S. Tort Costs: 2011 Update (2011), at 5. The private tort system plays a much smaller role in the rest of the developed world. See Tort Cost Trends: An International Perspective (Tillinghast, 1992), at 14.

31. Thomson, supra note 18, at 185 (emphasis added).

32. Honoré, Tony, The Morality of Tort Law—Questions and Answers, in Philosophical Foundations of Tort Law 73–95 (Owen, David G. ed., 1995), at 75 (emphasis added)Google Scholar.

33. Goldberg & Zipursky, Unrealized Torts, supra note 23, at 1652 (emphasis added). For other formulations of the same point, see id. at 1698 (“A[] . . . very difficult question is whether the duty to be vigilant of causing a threat of HIV infection involves a duty not to cause actual exposure to HIV or a duty not to cause possible exposure through a medically possible means of transmission.”). Jules Coleman similarly describes our duty under strict liability law as a “duty-not-to-harm-by-blasting” and our duty under negligence law as a “duty-not-to-harm-by-faultily-motoring.” Coleman, Jules, Theories of Tort Law, in Stanford Encyclopedia of Philosophy (Zalta, Edward N. ed., 2008)Google Scholar, available at http://plato.stanford.edu/entries/tort-theories.

34. Bernard Williams, Moral Luck, in Moral Luck 20–39 (1981).

35. McCarthy, David, Liability and Risk, 25 Phil. & Pub. Aff. 238–262 (1995), at 251CrossRefGoogle Scholar.

36. Joel Feinberg, Harm to Others (1984), at 190–193.

37. Epstein, Richard, A Theory of Strict Liability, 2 J. Legal Stud. 151–204 (1973)CrossRefGoogle Scholar. The argument might be thought to be question-begging. Either Epstein intends risky conduct to be tortious whether the force released actually causes harm or not—in which case all action is tortious; or he intends it to be tortious only when the force released actually causes harm—in which case he has not succeeded in making risk creation itself tortious.

38. Goldberg & Zipursky, Unrealized Torts, supra note 23; Schroeder, Christopher, Corrective Justice and Liability for Increasing Risks, 37 UCLA L. Rev. 439 (1990)Google Scholar; Simons, Kenneth W., Corrective Justice and Liability for Risk-Creation: A Comment, 38 UCLA L. Rev. 113 (1990)Google Scholar; Schroeder, Christopher H., Corrective Justice, Liability for Risks, and Tort Law, 38 UCLA L. Rev. 143 (1990)Google Scholar. Finkelstein, Claire, Is Risk a Harm?, 151 U. Pa. L. Rev. 963 (2003)CrossRefGoogle Scholar (arguing that imposition of risk is itself a psychological injury).

39. Hampton, Jean, Correcting Harms versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659–1702, 1681 (1992)Google Scholar.

40. Kumar, Rahul, Who Can Be Wronged?, 31 Phil. & Pub. Aff. 2, 99–118 (2003), at 109CrossRefGoogle Scholar.

41. Perry, supra note 4, at 1307 (emphasis added).

42. McKerlie, Dennis, Rights and Risk, 16 Canadian J. Phil. 239–252 (1986), at 241CrossRefGoogle Scholar; Wheeler, Samuel C. III, Self-Defense: Rights and Coerced Risk-Acceptance, 11 Pub. Aff. Q. 431–443 (1997)Google Scholar (arguing for the right to carry (and use) handguns for self-defense purposes, as consistent with the classic libertarian account of rights). Thomson, supra note 18, at 160–161, enlists the right of self-defense to fashion an intermediate position that seems, if anything, even harder to defend: The individual right of self-defense permits the state to levy a penalty on top of compensatory damages in the event of actual ex post harm, as a means of “indirect prevention,” but apparently would not permit it to levy penalties on risky conduct for the same purpose in the absence of any as-yet materialized harm. Why should we encourage the state to do indirectly (and imperfectly) what we will not permit it to do directly?

There is a second and related problem with fitting risk under contractualist or deontological principles: how to deal with what Rahul Kumar calls the “individual reasons restriction,” meaning that the wrong of the conduct resides not just in what the actor did (including his mental state) but in what it did to the victim, “the force of which needs to be accounted for in light of the implications for her life.” Kumar, supra note 40, at 109. That is to say, a wrong requires an imaginary complainant. But if one takes an identifiable individual victim to be a prerequisite for wrongful conduct, we have a serious problem in dealing with unintentional harms. Some intermediate cases seem easy to subsume into the requirement of an individual, identifiable victim: wrongful birth; a drunk driver careening down the street on which person X is walking (see id.). But in the typical unintentional harm case, the characterization of the wronged person as an identifiable individual is either a form of hindsight bias or just a rhetorical trick. Kumar, for example, bridges the “temporal” gap in a wrongful-death case by imagining the individual wronged party to be a “type” (the would-be natural child of the careless parent) that is a placeholder for the “token” of the type that will eventually surface. Id. at 114. That move, however, appears to be without limit. For example, one could describe the individual wronged by a drunk driver at the moment of driving as the “type” of those persons who find themselves in a geographical place where they are put at risk. But it is not clear to me what real problem that could be deemed an adequate solution to.

43. Nozick, supra note 3, at 75.

44. Id. at 14.

45. Id. at 28, 146.

46. Charles Fried, Right and Wrong (1978), at 12.

47. Id. at 12.

48. See, e.g., Wheeler, supra note 42, at 432–433 (whether a given right “survives” its encounter with a conflicting right “depends on the relative strength of the rights”). Thus I have a right to drive at 30 m.p.h. but Pedestrian Jones has right-of-way even if I am going at only 30 m.p.h.: “In this case, when Jones is in the cross-walk, his right to be there erases my right to drive down the road at 30 m.p.h. I have to slow down or stop.” “I cannot operate a nuclear reactor on my property if the existence of that poses enough of a threat to my neighbors. In such cases, I do not have a right which persists in the face of the countervailing right.” Id at 432 (emphasis added).

49. Feinberg, supra note 36, at 190–193.

50. McKerlie, supra note 42, at 240–241.

51. Jules Coleman, Risks and Wrongs (2002), at 210. See also Hurd, Heidi, The Deontology of Negligence, 76 B.U. L. Rev. 249 (1996), at 264, 272Google Scholar.

52. Consider, for example, a tort suit based on a claim of negligent driving. Negligence will in fact be determined by looking at whether the driver has complied with the rules (e.g., speed limits, right of way) and standards (e.g., exercising caution in a crowded intersection) of “safe driving” devised by the administrative state. This is true more generally of negligence. It generally mirrors regulatory standards to the extent they speak to the relevant conduct.

53. For further discussion of this issue, see B. Fried, Can Contractualism Save Us, supra note 10.

54. For an argument verging on that position, see Heinzerling, Lisa, Knowing Killing and Environmental Law, 14 N.Y.U. Envtl. L.J. 521–534 (2006)Google Scholar. Again, if we read Heinzerling's condemnation as a demand for compensation, not prohibition (and set aside the Coasian problem of determining which of the “joint causes” of a given social cost “caused” it and which was the victim of it), it is a perfectly coherent (if not practical or morally attractive) requirement. It just amounts to a strict liability standard. But if it is meant as a theory of action—that is, is meant to prohibit any conduct that may lead to serious harm—it appears to condemn virtually all action.

55. Goldberg & Zipursky, Unrealized Torts, supra note 23, at 1654.

56. Alternatively, if we read this standard to mean that anything that could turn out ex post to harm others is impermissible, it prohibits virtually all conduct.

57. The knowledge that the actor (speaker) will have to compensate for any (ex post) harm will indirectly chill risky conduct (risky speech) by increasing its expected cost. But that consequence is unintended, presumably undesired (if we take the authors at their word about the value of freedom), and unlikely to deter the same conduct we would choose to prohibit ex ante on the basis of expected harm.

58. On the centrality of fault to a moral conception of tort, see, e.g., Owen, David, The Fault Pit, 26 Ga. L. Rev. 703–724 (1992)Google Scholar, at 710: “[T]he dominance of fault in the law of torts is a moral inevitability. Fault lies at the very hear of tort law and provides it with a meaningful, moral definition.”

59. Cohen, Felix, The Ethical Basis of Legal Criticism, 41 Yale L.J. 201–220 (1931), at 203CrossRefGoogle Scholar.

60. Thomson, supra note 18, at 173–174. Thomson's examples here include actions that inflict physical pain but no lasting injury (pinching someone's nose), and actions that amount to aesthetic nuisances (a neighbor puts unsightly plastic geese on his lawn). These injuries may be relatively trivial or transitory, or easily avoidable; for this and other reasons, we may wish to decide, as a normative matter, that the actions should be privileged. But if the question is whether, as a matter of fact, they inflict an unwanted outcome on the victim, the answer is yes.

61. Goldberg & Zipursky, Unrealized Torts, supra note 23, at 1697.

62. Coleman, Risks and Wrongs, supra note 51, at 335 (“invasive of a right”).

63. Birks, Peter, The Concept of a Civil Wrong, in Philosophical Foundations of Tort Law 31–51 (Owen, David G. ed., 1995), at 40Google Scholar; Thomson, supra note 18, at 174–175: “unwanted outcomes” include only those outcomes that are both unwanted in fact and “infringe a [legal] right”—that is, are treated as legal wrongs; Coleman, Risks and Wrongs, supra note 51, at 331; Kumar, supra note 40, at 107 (“the wrongdoer has, without adequate excuse or justification, violated certain legitimate expectations with which the wronged party was entitled, in virtue of her value as a person, to have expected her to comply.”).

64. Raz, Joseph, Autonomy, Toleration, and the Harm Principle, in Issues in Contemporary Legal Philosophy 329 (Gavison, Ruth ed., 1987)Google Scholar.

65. Goldberg & Zipursky, Unrealized Torts, supra note 23, at 1652.

66. Feinberg, supra note 36, at 36.

67. Owen, supra note 58, at 717.

68. McCarthy, supra note 35, at 250: X is liable “if X performs an action that she knows or ought to know will impose . . . harm on Y,” provided there is no excuse for it (“excuses aside”). See also Tannenbaum, Julie, Emotional Expressions of Moral Value, 132 Phil. Stud. 43–57 (2007), at 47CrossRefGoogle Scholar (you must never kill another unless “the other's right to life is overridden, forfeited, or waived.”).

69. Keating, Gregory, A Social Contract Conception of the Tort Law of Accidents, in Philosophy and the Law of Torts 22–71 (Postema, Gerald ed., 2001)CrossRefGoogle Scholar.

70. Feinberg, supra note 36, at 36; Owen, supra note 58.

71. Perry, Stephen, On the Relationship between Corrective and Distributive Justice, in Oxford Essays in Jurisprudence 237–238 (4th ser., Horder, Jeremy ed., 2000)Google Scholar.

72. Judith Jarvis Thomson, Some Questions about Government Regulation of Behavior, in Rights, Restitution, and Risk: Essays in Moral Theory 154–172 (1986), at 167; Coleman, Risks and Wrongs, supra note 51, at 332; Perry, Stephen, Responsibility for Outcomes, Risk, and the Law of Torts, in Philosophy and the Law of Torts 72–130 (Postema, Gerald ed., 2001), at 112–115CrossRefGoogle Scholar; Stone, Martin, The Significance of Doing and Suffering, in Philosophy and the Law of Torts 131–182 (Postema, Gerald ed., 2001), at 161–162CrossRefGoogle Scholar; Ripstein, Arthur & Zipursky, Benjamin, Corrective Justice in an Age of Mass Torts, in Philosophy and the Law of Torts 214–249 (Postema, Gerald ed., 2001), at 219–220CrossRefGoogle Scholar; Wright, Richard W., Right, Justice and Tort Law, in Philosophical Foundations of Tort Law, 159–182 (Owen, David G. ed., 1995), at 169–170Google Scholar; Owen, David G., Philosophical Foundations of Fault in Tort Law, in Philosophical Foundations of Tort Law, 201–228 (Owen, David G. ed., 1995), at 219–220, 224–225Google Scholar; Weinrib, Ernest, Understanding Tort Law, 23 Val. U. L. Rev. 485 (1989), at 518–519Google Scholar; Weinrib, Ernest, Causation and Wrongdoing, 63 Chi.-Kent L. Rev. 407 (1987), at 448–449Google Scholar (“prima facie, the obvious candidate [for a morally plausible general statement about what might constitute rights-violating behavior] is that one ought not to cause harm (at least without justification).”).

73. The dangers of slipping into tautology come to the fore in efforts to create a unified theory of duty in tort law that can explain both strict liability and negligence. Consider the following example:

Coleman, Theories of Tort Law, supra note 33. For a similar argument subsuming strict liability into a fault-based tort system, see Birks, Peter, The Concept of a Civil Wrong, in Philosophical Foundations of Tort Law 29–52 (Owen, David G. ed., 1995), at 44–45Google Scholar. That formulation of “fault”—in which our moral duty to others is defined as the duty not to do whatever is proscribed by law—does not rest on any independent moral theory of what we owe to others. It is simply a cumbersome way of saying that whatever the law holds you responsible for, you are responsible for.

74. Scholarship in criminal law has (not surprisingly) generated the same problems in defining the class of harmful conduct that is criminally wrongful. The Model Penal Code, for example, defines it as conduct that “unjustifiably and inexcusably inflicts or threatens substantial harm.” See also Feinberg, supra note 36, at 31–36; Duff, Antony, Theories of Criminal Law, in Stanford Encyclopedia of Philosophy (Zalta, Edward N. ed., 2008)Google Scholar, available at http://plato.stanford.edu/archives/fall2008/entries/criminal-law/.

While the matter is beyond the scope of this paper, I believe that similar problems arise with other deontological principles (autonomy, sovereignty, self-ownership, treating others as ends and not means) that are frequently offered as an alternative to the harm principle for determining what conduct to prohibit. For example, Rahul Kumar describes the wrong of imposing an unreasonable risk as “deny[ing] the value of [another's] humanity,” by “culpably failing to comply with the legitimate expectations of another.” Kumar, supra note 40, at 109. See also Ripstein, Arthur, Beyond the Harm Principle, 34 Phil. & Pub. Aff. 215–245 (2006)CrossRefGoogle Scholar. But the actions that will be deemed to have “denied the humanity” of another depend on the content we give “legitimate” expectations and its complement, “culpably failing to comply” with them.

75. See, e.g., Coleman, Theories of Tort Law, supra note 33.

More recently, Coleman acknowledges the obligation of corrective justice to explain the content of our duty of care but defers its undertaking to another day. Jules Coleman, Epilogue to Risks and Wrongs: Second Edition, Yale Law School Public Law Working Paper No. 218 (2010), available at Social Science Research Network, http://ssrn.com/abstract=1679554, at 26.

76. Coleman, Theories of Tort Law, supra note 33. Defending a “corrective justice” view of tort law from Richard Posner's charge that since the duties we owe to others are unspecified, we cannot rule out the possibility that those duties are dictated by instrumental (welfarist) considerations, Coleman states that: “While corrective justice is not a theory of the wrongs it rectifies, it can only make sense of tort law if in general the kinds of wrongs identified in torts are ones that must as a matter of justice [rather than for instrumental purposes] be repaired.” Id. But my argument here is different from Posner's: it is that the content of justice (at least in the case of negligence) turns out to be supplied by such instrumental goals, buried in the intended meaning of the words “due care.”

77. Owen, Fault Pit, supra note 58, at 716.

78. Id. at 722–723. Owen, who—unlike Coleman—has sought to defend a moralistic view of “fault,” tries to climb back from the limb he has put himself out on here by arguing that his motives for embracing the utilitarian solution are moralistic—in particular, a Dworkinian “‘equality of concern and respect’ for the interests of other persons.” But he goes on to define acts that are “morally justifiable in terms of equality” as those that are “likely to achieve a good for the actor and others that is greater than any harm foreseeably risked to the victim and others” (id. at 721)—that is to say, as those that would be recommended by CBC.

Alternatively, Owen defends his resort to utilitarianism as just a backstop/default principle, to be used when “[p]rinciples of freedom and vested rights alone frequently are unable to resolve the complex questions of accountability.” Id. at 722. But he goes on to suggest that the category of cases that deontological principles may be unable to resolve includes all accidental (as contrasted with intentional) harm—in his words, cases where “an actor's choice of action involves only a risk of harm to others, necessary and incidental to the pursuit of some proper goal not harmful in itself.” Id. at 721. If that is the scope of his “default” principle, it is the whole ballgame.

79. Kumar, supra note 40, at 107. Similarly, it is hard to distinguish from CBC Scanlon's requirement that we adopt “reasonable precautions,” with “reasonableness” to be determined by weighing the risk of serious harms to some individuals against the benefits that will be realized by others if the activity goes forward. Thomas Scanlon, What We Owe to Each Other (1998), at 236–237, 263–265. I do not mean to suggest that any or all of these formulations will cash out to a pure CBC. Most are insufficiently specified to answer that question with confidence. My claim is rather that their core commitments seem indistinguishable from CBC, and hence it seems not unreasonable to put the burden on nonaggregationists to offer an interpretation that makes clear it is something other than CBC. For further discussion, see B. Fried, Can Contractualism Save Us, supra note 10.

80. Examples offered to prove that “wrongful harm to others” does not reduce to welfarism seem to me similarly unpersuasive. Consider here Coleman's argument that Calabresi's “cheapest cost-avoider” criterion for assigning responsibility cannot be subsumed under Coleman's rule of corrective justice: that “one has [a duty] to repair the wrongful losses for which one is responsible.” Coleman considers and dismisses as unpersuasive the attempt to collapse the former into the latter by defining the “responsible party” as the cheapest cost-avoider. But the far more plausible point of vulnerability in Coleman's argument, it seems to me, lies in the word “wrongful.” If “wrongful” reduces to “unreasonable,” and “unreasonable” includes (in general) failure to take reasonable (meaning cost-justified) precautions, then Coleman's universe of “wrongdoers” may in fact include Calabresi's “cheapest cost-avoider” who failed to avoid the problem. Again, the point here is not to argue that Coleman's and others’ definition of “wrong” is indistinguishable from some version of CBC. It is rather to argue that nothing said to date rules out that possibility in most cases.

81. For more detailed discussion of the issues touched on here, see B. Fried, What Does Matter?, supra note 10; B. Fried, Can Contractualism Save Us, supra note 10.

82. See, e.g., Michael Otsuka, Risking Life and Limb (2011) (unpublished manuscript), n.7, arguing that shifting “focus from private duties of beneficence to public obligations regarding the distribution of risks and harms” renders all agent-relative preferences irrelevant.

83. For further discussion, see B. Fried, Can Contractualism Save Us, supra note 10.

84. See B. Fried, What Does Matter?, supra note 10.

85. One tragic example of the latter arose in the wake of the Haitian earthquake. Responding to one sketchy relief effort by a group of American Baptists, the authorities halted all evacuations of sick and injured children as relief workers scrambled to obtain documentation that would prove they were not taking the children out of the country illegally. The New York Times reported that in the first week alone, an estimated ten Haitian children died or became seriously ill as a result of not being able to be airlifted out of Haiti. Ian Urbina, Paperwork Hinders Airlifts of Ill Haitian Children, N.Y. Times, Feb. 8, 2010, available at http://www.nytimes.com/2010/02/09/world/americas/09airlift.html?scp=1&sq=haiti%20children%20airlift&st=cse. For another widely discussed example of the seeming perversity of many risk reduction efforts, see Wolff, Jonathan, Risk, Fear, Blame and Shame: The Regulation of Public Safety, 22 Econ. & Phil. 409–427 (2006)Google Scholar (on the United Kingdom's decision, in the wake of a railway accident, to check all of the tracks for safety, an effort that in all likelihood produced a much higher number of deaths when disruptions in service caused commuters to switch to driving than it prevented for future rail travelers). The point is not to argue that responses such as these are irrational (although if the end goal is protecting lives, they surely are) but to illustrate the fact that any decision we make about harm prevention involves trade-offs, whether we acknowledge them or not.

86. Hansson, Sven Ove, Risk and Ethics, in Risk: Philosophical Perspectives 21–35 (Lewens, T. ed., 2007), at 32Google Scholar.

87. Carol Pogash & Solomon Moore, California Officials Fear Abduction Case May Hurt Efforts on Parole, N.Y. Times, Aug. 30, 2009, available at http://www.nytimes.com/2009/08/31/us/31abduct.html.